Carla Frew v. Thomas Suehs

Case: 14-40048 Document: 00512959210 Page: 1 Date Filed: 03/05/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 5, 2015
No. 14-40048
Lyle W. Cayce
Clerk
CARLA FREW; CHARLOTTE GARVIN, as next friend of her minor children
Johnny Martinez, Brooklyn Garvin and BreAnna Garvin; CLASS
MEMBERS; NICOLE CARROLL, Class Representative,
Plaintiffs - Appellants
v.
KYLE JANEK, Commissioner of the Texas Health and Human Services
Commission in his official capacity; KAY GHAHREMANI, State Medicaid
Director of the Texas Health and Human Services Commission in her official
capacity,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
WIENER, Circuit Judge:
This appeal arises from the district court’s termination of several
provisions of a consent decree and the dissolution of a related corrective action
order pursuant to the first clause of Federal Rule of Civil Procedure 60(b)(5)—
that the judgment has been “satisfied, released, or discharged.” Plaintiffs
represent a class of Texas children eligible for Medicaid’s Early and Periodic
Screening, Diagnosis, and Treatment program (“EPSDT” or “the Program”).
They concluded a consent decree (the “Decree”) with various Texas state
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No. 14-40048
officials (“Defendants”) in 1996 to make improvements to Texas’s
implementation of the Program. In 2007, the parties agreed on a corrective
action order to resolve Plaintiffs’ concerns with one part of the Decree.
Defendants, believing their obligations to be satisfied, have now moved to
dissolve that order and the associated Decree provisions under Rule 60(b)(5).
The district court granted their motion. We affirm.
I. Facts and Proceedings
A. Past Proceedings
This action began in 1993 when Plaintiffs, representatives of a class of
over 1.5 million Texas children eligible for EPSDT, sued Defendants under 42
U.S.C. § 1983 for violations of federal Medicaid law in the state’s
implementation of the Program. 1 As noted, the parties concluded a consent
decree in 1996 in which Defendants promised to implement a number of
changes, among which was a training program for participating health care
providers. 2 A few years later, after little progress had been made, the district
court found Defendants in violation of the Decree (“Frew I”). 3 We reversed,
solely on Defendants’ challenge to the Decree’s validity under the Eleventh
Amendment (“Frew II”). 4 The Supreme Court then reversed Frew II (“Frew
III”).
In Frew III, the Court noted that Defendants’ legitimate concerns over
the Decree’s potential to “undermine the sovereign interests and accountability
of state governments” were not properly addressed to the Eleventh
Amendment but to the district court’s power, under Rule 60(b)(5), to grant
Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 434 (2004); Frew v. Gilbert, 109 F. Supp.
1
2d 579, 587 (E.D. Tex. 2000).
2 See Frew, 109 F. Supp. 2d at 588.
3 See id. at 678.
4 See Frazar v. Gilbert, 300 F.3d 530, 543 (5th Cir. 2002).
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relief “if ‘it is no longer equitable that the judgment should have prospective
application.’” 5 The Court reiterated the “flexible standard” for modification of
institutional-reform consent decrees 6 found in Rufo v. Inmates of Suffolk
County Jail 7 and urged district courts to return the “responsibility for
discharging the State’s obligations” promptly to state officials once “the objects
of the decree have been attained.” 8
On remand, we returned the case to the district court (“Frew IV”). 9
Defendants moved to dissolve the Decree under Rule 60(b)(5)’s third clause,
claiming that its continued enforcement would be inequitable. 10 The district
court, applying Rufo and Frew III, denied their motion, and we affirmed (“Frew
V”). 11
Back in the district court, the parties agreed on eleven corrective action
orders, each aimed at bringing Defendants into compliance with a specific
portion of the Decree. CAO 637-8, the order at issue in this appeal,
implemented ¶¶ 124–30 of the Decree, which concerned deficiencies in
Medicaid-participating pharmacies’ understanding of EPSDT. All eleven
orders were entered into the record in 2007. 12
B. Consent Decree ¶¶ 124–30 and CAO 637-8
1. Consent Decree ¶¶ 124–30
The 78-page Decree is organized into 308 paragraphs, of which only 7
are involved in this appeal. Paragraphs 124–30 form one subsection of a larger
Frew, 540 U.S. at 441 (quoting FED. R. CIV. P. 60(b)(5)).
5
Id.
6
7 502 U.S. 367 (1992).
8 Frew, 540 U.S. at 442.
9 See Frazar v. Hawkins, 376 F.3d 444, 447 (5th Cir. 2004).
10 See Frew v. Hawkins, 401 F. Supp. 2d 619, 631 (E.D. Tex. 2005).
11 See Frazar v. Ladd, 457 F.3d 432, 434 (5th Cir. 2006).
12 In 2009, the case was transferred by Judge William Wayne Justice, who had
overseen the case from its inception, to Judge Richard Schell.
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section that calls for a variety of training initiatives for healthcare providers.
Of these 7 paragraphs, 2 mandate that Defendants perform specific actions:
129. By January 31, 1996, Defendants will implement an
initiative to effectively inform pharmacists about EPSDT, and in
particular about EPSDT’s coverage of items found in pharmacies.
The effort will include presentations at meetings of the Texas
Pharmaceutical Association and other appropriate organizations,
if possible, articles in the TPA newsletter, if possible, and at least
one mail out to all pharmacists who participate in the Medicaid
program. The mail out will be designed to attract pharmacists’
attention, explain EPSDT coverage clearly and encourage
pharmacists to provide the full gamut of covered pharmaceutical
products to recipients as needed.
130. By July 31, 1996, Defendants will conduct a professional and
valid evaluation of pharmacists’ knowledge of EPSDT coverage of
items commonly found in pharmacies. They will report the results
of the evaluation to Plaintiffs by September 1, 1996. If the parties
agree that pharmacists’ understanding of the program is
acceptable, Defendants will continue the initiative described above
to inform pharmacists about EPSDT. If the parties do not agree,
or if pharmacists’ understanding is unacceptable, Defendants will
conduct an initiative to orally inform pharmacists about EPSDT’s
coverage. Plaintiffs will not unreasonably disagree about whether
pharmacists’ understanding is acceptable. 13
Plaintiffs contend that three other paragraphs of the Decree are
relevant: ¶ 3, which declares that “[r]ecipients are also entitled to all needed
follow up health care services that are permitted by federal Medicaid law”; ¶ 6,
which describes the purpose of the Decree as “[t]o address the parties’ concerns,
13 Paragraph 124 describes the critical role that pharmacies play in the Program.
Paragraph 125 introduces Plaintiffs’ complaints: Pharmacists do not understand EPSDT’s
requirements, such as the fact that over-the-counter medications are covered if prescribed by
a doctor. Paragraph 126 states that EPSDT also covers medically necessary infant formula,
diapers, and other supplies and equipment “commonly sold in pharmacies.” Paragraph 127
continues Plaintiffs’ complaints: Pharmacies that do not understand EPSDT require
Medicaid recipients to pay in cash; recipients often do not have cash or end up erroneously
paying for covered items. Paragraph 128 states Defendants’ disagreement with these facts.
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to enhance recipients’ access to health care, and to foster the improved use of
health care services by Texas EPSDT recipients”; and ¶ 190, which states that
“EPSDT recipients served by managed care organizations are entitled to timely
receipt of the full range of EPSDT services, including but not limited to medical
and dental check ups.” 14
2. CAO 637-8
This corrective action order begins by referencing ¶¶ 3, 129, and 130 of
the Decree. It then describes Plaintiffs’ main complaint with pharmacists’
understanding of EPSDT’s prescription drug program: When EPSDT
recipients seek to fill prescriptions for drugs that are not listed on the
Program’s Preferred Drug List (“PDL”), pharmacists may fill them only if they
have “prior authorization” from the prescribing physicians. If a prescribing
physician does not provide the authorization or could not be reached, the
pharmacist must dispense a 72-hour emergency supply so that the class
member is not deprived of needed medication. Many pharmacists, however,
did not know that the stopgap measure was available or treated it as optional
and improperly withheld class members’ prescriptions.
To remedy the pharmacists’ misunderstanding, CAO 637-8 established
a detailed series of action items, elaborating on and expanding the
requirements found in ¶¶ 124–30 of the Decree. CAO 637-8 is divided into 12
bullet points, of which 9 require specific actions by Defendants. Particularly
contested in this appeal are their obligations in bullet points 6 and 10. 15
14 In March 2012, the EPSDT prescription drug program was transferred from direct
state control to the control of managed care organizations. All Texas EPSDT recipients are
now served by managed care organizations.
15 CAO 637-8 also requires Defendants to (1) change the Program’s electronic
prescription processing system so that it reminds pharmacists of the 72-hour emergency
policy; (2) “work with the Texas Pharmacy Association to explain” the policy; (3) make
available a PDL database service that doctors may use online or download to a handheld
device for reference while providing care; (4) “begin encouraging all Medicaid-enrolled
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Bullet point 6 required Defendants to “provide intensive, targeted
educational efforts to those pharmacies for which the data suggests a lack of
knowledge of the 72-hour emergency prescriptions policy.” 16 In addition to
these “intensive, targeted” efforts for particular noncompliant pharmacies,
Defendants were also to “continue . . . educational efforts with respect to all
Medicaid pharmacies.”
Bullet point 10 required Defendants to train staff at their ombudsman’s
office “about the emergency prescription standards,” including “what steps to
take to immediately address class members’ problems when pharmacies do not
provide emergency medicines.”
C. Current Proceedings
In 2012, Plaintiffs moved to enforce the pharmacy aspects of the Decree
and CAO 637-8, contending that further action was required because the
training efforts had not been effective. They asked the court to “require that
Defendants develop a plan thorough and vigorous enough to eradicate the
severe systemic dysfunction” still remaining in the interaction between
pharmacies and EPSDT. Defendants countered, claiming that they had
“satisfied the terms of the CAO,” and moved to dissolve CAO 637-8 and Decree
¶¶ 124–30 “under the first ground set forth in Rule 60(b)(5).” They did not
seek relief pursuant to the Rule’s second or third grounds.
pharmacies to also become Medicaid-enrolled providers of durable medical equipment”; (5)
provide information about the 72-hour policy and Medicaid’s coverage of durable medical
equipment every time a pharmacy signs a new, renewed, or amended contract to participate
in Medicaid; and (6) encourage managed care organizations to train the nurses who staff
their patient hotlines about the 72-hour and durable medical equipment policies.
16 The previous bullet point had required Defendants to identify these target
pharmacies by performing an analysis of all pharmacies’ claims histories, which would reveal
those that processed zero or a lower-than-expected number of 72-hour emergency
prescriptions. Within two years of completing this analysis, Defendants were to repeat it.
The final bullet point in CAO 637-8 required the parties to confer after the second analysis
was complete “to determine what, if any, further action [was] required.”
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After a hearing, the district court agreed that Defendants had
“substantially complied with the terms of CAO 637-8 and Decree [¶¶] 124–130”
and granted their Rule 60(b)(5) motion. The court also found that Plaintiffs
had conceded Defendants’ compliance with all action items besides those in
bullet points 6 and 10.
II. Analysis
A. Standard of Review
“Consent decrees are subject to Federal Rule of Civil Procedure 60(b).” 17
We review a district court’s decision to grant or deny relief pursuant to Rule
60(b) for abuse of discretion. 18 Under this standard, the district court’s ruling
is “entitled to deference,” but we review de novo “any questions of law
underlying the district court’s decision.” 19
Plaintiffs urge that Frew I, in which Judge Justice construed various
provisions of the Decree, is entitled to deference as “the law of the case.” They
appear to find this rule in a line of Sixth Circuit cases that apply “deferential
de novo” review to interpretations of consent decrees by the judges who initially
approved them. 20 We have never followed this rule. Moreover, the law of the
case doctrine “generally operates to preclude a reexamination of issues decided
on appeal.” 21 The only decisions that form the law of this case are the Supreme
Court’s opinion in Frew III and our previous panel opinions in Frew II, Frew
IV, and Frew V. None of these interpret ¶¶ 124–30 of the Decree; CAO 637-8
17 League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 437
(5th Cir. 2011).
18 Id.
19 Frazar v. Ladd, 457 F.3d 432, 435 (5th Cir. 2006).
20 Shy v. Navistar Int’l Corp., 701 F.3d 523, 528 (6th Cir. 2012); see also, e.g., Brown
v. Neeb, 644 F.2d 551, 558 n.12 (6th Cir. 1981).
21 Conway v. Chem. Leaman Tank Lines, Inc., 644 F.2d 1059, 1061 (5th Cir. Unit A
May 1981) (emphasis added).
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did not even exist at the time of Frew V. We thus decline Plaintiffs’ invitation
to apply our law of the case doctrine here.
B. Rule 60(b)(5)
Consent decrees, like other judgments, may be modified or terminated
pursuant to Rule 60(b)(5), which provides three independent, alternative
grounds for relief: “[1] the judgment has been satisfied, released, or discharged;
[2] it is based on an earlier judgment that has been reversed or vacated; or
[3] applying it prospectively is no longer equitable.” 22 As the party seeking
relief, Defendants must bear the burden of showing that Rule 60(b)(5)
applies. 23
The vast majority of motions for modification and termination of consent
decrees, especially those involving institutional reform, invoke Rule 60(b)(5)’s
third clause. 24 In contrast, the first clause of Rule 60(b)(5) is raised far less
often—typically when there is a dispute over the amount of the judgment 25—
22 FED. R. CIV. P. 60(b)(5); see also Horne v. Flores, 557 U.S. 433, 454 (2009)
(“Satisfaction of an earlier judgment is one of the enumerated bases for Rule 60(b)(5) relief—
but it is not the only basis for such relief. . . . Use of the disjunctive ‘or’ makes it clear that
each of the provision’s three grounds for relief is independently sufficient . . . .”).
23 See League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421,
438 (5th Cir. 2011).
24 See 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE & PROCEDURE § 2863 (3d ed. 2012) (“The significant portion of Rule 60(b)(5) is the
final ground, allowing relief if it is no longer equitable for the judgment to be applied
prospectively.”); see also Horne, 557 U.S. at 447 (applying the third clause); Agostini v. Felton,
521 U.S. 203, 215 (1997) (same); Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 376
(1992) (noting that one party sought modification of a consent decree on the basis of alleged
changes in law and fact, which pertain to Rule 60(b)(5)’s third clause).
25 See, e.g., Bryan v. Erie Cnty. Office of Children & Youth, 752 F.3d 316, 321 (3d Cir.
2014); BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271, 1274 (11th Cir. 2008);
Zamani v. Carnes, 491 F.3d 990, 995 (9th Cir. 2007); Newhouse v. McCormick & Co., 157 F.3d
582, 584 (8th Cir. 1998); Redfield v. Ins. Co. of N. Am., 940 F.2d 542, 544 (9th Cir. 1991);
Torres-Troche v. Municipality of Yauco, 873 F.2d 499, 501 (1st Cir. 1989); Sunderland v. City
of Phila., 575 F.2d 1089, 1090 (3d Cir. 1978).
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and is almost never applied to consent decrees. 26 As such, we find very little
applicable precedent interpreting this clause.
Defendants urge us to import the principles of Frew III to this case, as
the Decree implicates the exact same federalism concerns as before. Plaintiffs’
response—that Frew III’s hortatory language about state accountability
pertains only to Rule 60(b)(5)’s third clause—is technically accurate, but fails
to account for Rule 60(b)’s expansive scope:
We have repeatedly noted that Rule 60(b) is to be given a liberal
construction: “In analyzing the 60(b) aspect, [w]e recognize that
Rule 60(b) is to be construed liberally to do substantial justice. The
rule is broadly phrased and many of the itemized grounds are
overlapping, freeing Courts to do justice in hard cases where the
circumstances generally measure up to one or more of the itemized
grounds.” 27
In light of this statement and the lack of other precedent, we deem it
reasonable to consider Defendants’ motion with reference to the Supreme
Court’s unambiguous instructions in Frew III.
C. Consent Decree Interpretation
Consent decrees are construed according to “general principles of
contract interpretation.” 28 “The primary concern of a court in construing a
written contract is to ascertain the true intentions of the parties as expressed
26 See 11 WRIGHT, MILLER & KANE, supra note 24, § 2863 (“The first of the grounds
set out in Rule 60(b)(5), that the judgment has been satisfied, released or discharged, has
been relied on very rarely.”).
27 Johnson Waste Materials v. Marshall, 611 F.2d 593, 600 (5th Cir. 1980) (quoting
Laguna Royalty Co. v. Marsh, 350 F.2d 817, 823 (5th Cir. 1965)).
28 Dean v. City of Shreveport, 438 F.3d 448, 460 (5th Cir. 2006). Furthermore, the
court “look[s] to state law to provide the rules of contract interpretation.” Clardy Mfg. Co. v.
Marine Midland Bus. Loans Inc., 88 F.3d 347, 352 (5th Cir. 1996). Plaintiffs cite to Texas
contract law, and we have previously applied Texas law in cases involving consent decrees
concluded between Texas parties. See, e.g., City of El Paso, Tex. v. El Paso Entm’t, Inc., 464
F. App’x 366, 372 (5th Cir. 2012) (per curiam) (unpublished).
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in the instrument.” 29 Thus, courts examine the “unambiguous language in a
contract” and enforce “‘the objective intent’ evidenced by the language used.” 30
This reliance on the written terms must include consideration of all the terms:
“[C]ourts should examine and consider the entire writing in an effort to
harmonize and give effect to all the provisions of the contract so that none will
be rendered meaningless.” 31 “Indeed, courts must be particularly wary of
isolating from its surroundings or considering apart from other provisions a
single phrase, sentence, or section of a contract.” 32
Plaintiffs contend that the district court erred in focusing narrowly on
Defendants’ satisfaction of specific provisions of CAO 637-8 and not
considering the Decree’s broader goals, as found in ¶¶ 3, 6, and 190. The
purpose of the Decree, according to Plaintiffs, is results-oriented: It is not
enough for Defendants to perform the required action items mechanically; the
court must also find that these actions were effective in improving EPSDT
recipients’ access to health care. Plaintiffs conclude that, because the district
court failed to construe the Decree as a whole document, it misapplied the rules
of contract interpretation and erred as a matter of law.
Plaintiffs’ recitation of the rules of contract interpretation is correct, but
interpreting the Decree as an entire writing does not give Plaintiffs the victory
they seek. In ¶¶ 3 and 190, the Decree states the uncontroversial position that
Plaintiffs, including those served by managed care organizations, are entitled
to EPSDT benefits as mandated by Medicaid. In ¶¶ 4 and 5, the Decree opines
that Texas’s implementation of EPSDT could and should be improved. Then,
in ¶ 6, the Decree introduces the “changes and procedures” agreed to by the
29Texas v. Am. Tobacco Co., 463 F.3d 399, 407 (5th Cir. 2006) (emphasis added).
30Clardy, 88 F.3d at 352.
31 Coker v. Coker, 650 S.W.3d 391, 393 (Tex. 1983).
32 Am. Tobacco Co., 463 F.3d at 408 (quoting State Farm Life Ins. Co. v. Beaston, 907
S.W.2d 430, 433 (Tex. 1995)) (internal quotation marks omitted).
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parties to effectuate this improvement, noting that these actions are in place
“[t]o address the parties’ concerns, to enhance recipients’ access to health care,
and to foster the improved use of health care services by Texas EPSDT
recipients.” These introductory paragraphs do not guarantee specific
outcomes; rather, they show that the Decree is aimed at supporting EPSDT
recipients in obtaining the health care services they are entitled to, by
addressing concerns, enhancing access, and fostering use of services.
Defendants therefore fulfill the purpose of the Decree by implementing
the broad range of supportive initiatives memorialized in the Decree. 33 The
whole point of negotiating and agreeing on a plethora of specific, highly
detailed action plans was to establish a clearly defined roadmap for attempting
to achieve the Decree’s purpose. In other words, the parties already agreed
that substantial compliance with this roadmap would achieve their common
goal.
To read the Decree as implying a secondary assessment of the impact of
each action item would introduce a new requirement to which the parties never
agreed. The Decree makes no guarantees of success and sets no results-based
milestones; neither do ¶¶ 124–30 establish any objective standard that
pharmacists must achieve before Defendants’ educational efforts may be
considered successful.
Plaintiffs have not pointed to any discrete endpoint for CAO 637-8 or
these Decree paragraphs. Indeed, they may never be satisfied with
Defendants’ educational efforts: In their 2012 motion to enforce the Decree and
CAO 637-8, Plaintiffs appeared to have given up on pharmacist training
entirely. Acknowledging that “[n]o amount of education will cure the pervasive
See id. at 407 (“The primary concern of a court in construing a written contract is
33
to ascertain the true intentions of the parties as expressed in the instrument.” (emphasis
added)).
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dysfunction in Defendants’ deeply flawed system,” Plaintiffs instead wanted
Defendants to “propose a further action plan” to effectuate “systematic change”
to the prescription drug program itself. Neither the rules of contract
interpretation nor Frew III’s instruction to “promptly” return state programs
to state control countenance this rewriting of the Decree.
Plaintiffs also point to the word “effectively” in ¶ 129: Defendants were
required to “implement an initiative to effectively inform pharmacists about
EPSDT.” Plaintiffs reason that if many EPSDT recipients are still not
receiving their prescription drug benefits, Defendants’ educational initiative
must not have been effective. Reading ¶ 129 as a whole, however, reveals that
“effectively” functions to require that all “presentations,” “articles,” and “mail
out” initiatives conducted by Defendants convey information effectively.
Paragraph 129 even provides some guidelines for effective communication,
instructing Defendants to design mailings “to attract pharmacists’ attention”
and “explain EPSDT coverage clearly.” Defendants were obligated to
communicate information in an effective manner, no more. To infer a
wholesale, results-oriented reevaluation of Defendants’ efforts from this one
word, taken out of context, would be wholly inconsistent with the rules of
contract interpretation. 34
Finally, Plaintiffs rely heavily on the Ninth Circuit’s opinion in Jeff D. v.
Otter, which held that “[e]xplicit consideration of the goals of [the consent
decree], and whether those goals have been adequately served, must be part of
the determination to vacate.” 35 But Jeff D. is inapposite for two reasons. First,
34 See id. at 408 (“Indeed, courts must be particularly wary of isolating from its
surroundings or considering apart from other provisions a single phrase, sentence, or section
of a contract.” (quoting State Farm, 907 S.W.2d at 433) (internal quotation marks omitted)).
35 643 F.3d 278, 289 (9th Cir. 2011).
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the Ninth Circuit’s reasoning rested on two school desegregation cases, 36 which
present unique issues in consent decree jurisprudence, 37 and on a case that
appears to have considered the flexible standard for modifying consent decrees,
a standard associated with the third clause of Rule 60(b)(5). 38 Thus, Jeff D.’s
persuasiveness is limited. Second, the consent decree at issue in Jeff D.
“provided for continuing jurisdiction by the district court for five years ‘or until
[the district court was] satisfied by stipulation or otherwise that the claims as
alleged in the Complaint have been adequately addressed.’” 39 The Jeff D.
parties bargained for a termination condition that included an independent
assessment by the district court of whether the plaintiffs’ complaints had been
resolved. Thus, when the district court vacated the consent decree after
assessing compliance with the specific action items only, it did not give the
plaintiffs the benefit of their bargain. 40 Although the Ninth Circuit did not
emphasize this fact, we find Jeff D. to be distinguishable on this basis.
In conclusion, we reject Plaintiffs’ contention that the district court
incorrectly interpreted the Decree in deciding Defendants’ motion to terminate
CAO 637-8 and Decree ¶¶ 124–30. If the Decree had explicitly guaranteed
36 See id. at 288 (citing Freeman v. Pitts, 503 U.S. 467 (1992); Youngblood v. Dalzell,
925 F.2d 954 (6th Cir. 1991)).
37 In Frew V, Defendants contended that the proper legal standard for terminating
consent decrees was that found in the Supreme Court’s school desegregation cases, but we
expressly declined to rule on that question. See Frazar v. Ladd, 457 F.3d 432, 440 (5th Cir.
2006). No party relies on the desegregation cases in this appeal. Owing to school
desegregation’s unique legal history, the consent decree modification standards articulated
in Freeman and similar cases may be of limited applicability. We have cited Freeman almost
exclusively in other school desegregation cases.
38 See Jeff D., 643 F.3d at 288 (citing United States v. City of Miami, 2 F.3d 1497 (11th
Cir. 1993) (considering the “flexible standard” from Rufo)).
39 Id. at 281 (emphasis added).
40 No similar provision exists in the Decree or in CAO 637-8. The closest analogue is
CAO 637-8’s instruction for “counsel . . . [to] confer to determine what, if any, further action
is required” after Defendants complete the second study of pharmacists’ claims history. If
the parties cannot agree, then the court may step in. There is nothing, however, instructing
the court to resolve the dispute with reference to the Decree’s overall purpose.
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pharmacists’ compliance, provided an objective standard for assessing the
effectiveness of Defendants’ actions, or set termination conditions referencing
satisfaction of the Decree’s overall purpose, Plaintiffs might legitimately
complain about the district court’s approach. As it is, the district court did not
err in interpreting CAO 637-8 and ¶¶ 124–30 to mandate specific actions only,
the performance of which would automatically satisfy the parties’ intent in
concluding these agreements.
D. Dissolution of Consent Decree ¶¶ 124–30 and CAO 637-8
Plaintiffs also challenge the district court’s conclusion that Defendants
have substantially complied with CAO 637-8 and Decree ¶¶ 124–30. In
determining that a party to a contract has fulfilled its contractual obligations,
Texas law allows substantial compliance. 41 “Substantial compliance excuses
deviations from a contract’s provisions that do not severely impair the
contractual provision’s purpose.” 42
The district court found that Defendants had substantially complied
with the requirements of bullet points 6 and 10 in CAO 637-8 and ¶¶ 124–30
of the Decree. It did not make any specific findings with respect to the other
bullet points in the CAO, as it determined that “[a]t the court’s hearing on
these motions, Plaintiffs acknowledged that Defendants substantially
complied with all but two of the paragraphs of CAO 637-8.”
Plaintiffs dispute that they made this concession, but their brief
acknowledges that, during the hearing on Defendants’ motion, their counsel
agreed with the court that “some discrete efforts took place.” A review of the
hearing transcript confirms the propriety of the district court’s ruling. Counsel
41 See Turrill v. Life Ins. Co. of N. Am., 753 F.2d 1322, 1326 (5th Cir. 1985).
42 Interstate Contracting Corp. v. City of Dall., Tex., 407 F.3d 708, 727 (5th Cir. 2005);
see also id. (noting that substantial compliance is not the legal equivalent of strict compliance
if the contract expressly calls for the latter).
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agreed that Defendants had (1) made a Medicaid PDL service available;
(2) implemented an electronic system for filling EPSDT prescriptions;
(3) worked with the Texas Pharmacy Association to educate its members;
(4) conducted two studies of pharmacies’ claims histories; 43 (5) encouraged
pharmacies to provide durable medical equipment; (6) provided EPSDT
materials to pharmacies when concluding new contracts; and (7) encouraged
managed care organizations to train their personnel in EPSDT. Although
counsel consistently disputed the effectiveness of Defendants’ efforts, the
relevant issue for determining substantial compliance is completion, and
Plaintiffs have conceded that Defendants completed all but two of the bullet
points in CAO 637-8.
As for the two disputed bullet points, the district court’s determination
that Defendants have substantially complied with their obligations is
consistent with the record. With respect to bullet point 6, which required
Defendants to educate pharmacies that filled below-expected numbers of 72-
hour emergency prescriptions in an “intensive, targeted” manner, Plaintiffs
assert that Defendants’ efforts were not sufficiently “intensive.” But the
district court found Defendants’ actions—mailing certified letters to 822
pharmacies, visiting or calling the ones that did not receive the letter, and
contacting corporate chain offices—to be sufficient. During oral argument,
Plaintiffs’ counsel also took issue with the content of the certified letter,
contending that it “never told the pharmacists that they must provide the 72-
hour prescription.” According to counsel, the letter left out “the critical part”
of the program—that this 72-hour emergency prescription was mandatory, not
43Plaintiffs’ counsel agreed that “[t]hey have conducted two studies fairly close to
what the corrective action order required,” noting that the studies were “not compliant with
[CAO 637-8], but fairly close.” The district court did not abuse its discretion to hold that this
statement demonstrated a concession of substantial compliance. See id.
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discretionary. Thus, “the whole system fell apart” because “the pharmacists
think they have discretion, or they don’t have to, or it’s only permissive that
they provide the 72-hour medication.” After reviewing the mailing, however,
we see no basis for this complaint. The letter told pharmacies that they “should
dispense the 72-hour emergency supply”; the enclosed “Texas Medicaid
Pharmacists’ Guide to Dispensing 72-Hour Emergency Prescriptions” clearly
stated that “[f]ederal and Texas law requires that a 72-hour emergency
supply of a prescribed drug be provided.” The district court did not err in
concluding that Defendants have fulfilled their obligations under bullet point
6.
With respect to bullet point 10, which required Defendants to train
personnel in their ombudsman’s office, Plaintiffs’ complaints, essentially, are
that any evidence of training is insufficiently detailed and conclusional. The
district court relied on three declarations from state employees who testified
that multiple training sessions occurred for ombudsman’s office staff.
Although Plaintiffs would prefer the district court not to credit these
statements, absent any indicia of unreliability other than Plaintiffs’
unsubstantiated accusations of bias, the court’s decision to do so is not clearly
erroneous.
Finally, Plaintiffs contend that the district court erred in dissolving
Decree ¶¶ 124–30 because it did not find that Defendants’ actions were
effective. As already discussed, the word “effectively” in ¶ 129 applies to the
Defendants’ communication obligation, not to the participating pharmacies’
compliance. The district court rejected Plaintiffs’ contention that the phrase
“Defendants will implement an initiative to effectively inform pharmacists
about EPSDT” meant ensuring that all Texas EPSDT recipients actually
received all of their pharmacy benefits. The court noted that Plaintiffs had
agreed that Defendants had completed the discrete, information-conveying
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actions required by this section of the Decree. This determination was not
clearly erroneous.
III. Conclusion
Defendants have fulfilled their obligations to provide training on and
make improvements to EPSDT’s prescription drug program. The district court
did not abuse its discretion in dissolving CAO 637-8 and ¶¶ 124–30 of the
Decree pursuant to Defendant’s motion for relief under the first clause of Rule
60(b)(5). Accordingly, the judgment of the district court is AFFIRMED.
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